NOMINATION OF WILLIAM H. WEBSTER TO BE DIRECTOR OF CENTRAL INTELLIGENCE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90B00017R000500150002-2
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 74
• Document Creation Date: December 27, 2016
• Document Release Date: February 12, 2013
• Sequence Number: 2
• Publication Date: April 9, 1987
• Content Type: OPEN SOURCE

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V I r i
D
UNITED STATES
TRANSCRIPT OF PROCEEDINGS
BEFORE THE
SELECT COMMITTEE
ON INTELLIGENCE
S
E
N
A
T
E
Thursday, April 9, 1987
OCA 87-2438
cy# I
WASHINGTON, D.C. 20510
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2..
C O N T E N T S
STATEMENT OF:
The Honorable William H-. Webster,.
Nominee to be
Director of Central Intelligence
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NOMINATION OF WILLIAM H. WEBSTER
TO BE DIRECTOR OF CENTRAL INTELLIGENCE
Thursday, April 9, 198.7
United States Senate,
'Select Committee on Intelligence
Washington, D. C.
The Select Committee met, pursuant to recess, at 3:15
o`clock p.m., in Room SD-628, Dirksen Senate Office Building,
the Honorable David Boren, Chairman of the Committee,
presiding. .
Present: Senators Boren, DeConcini, Metzenbaum, Cohen,
.Murkowski, Specter and Hecht.
Also Present: Sven E. Holmes, Staff Director/General
Counsel; James Dykstra, Minority Staff Director; and Kathleen
McGhee, Chief Clerk.
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P R O C E E D I N.G S
THE CHAIRMAN: We resume our hearings today on the
nomination of William H. Webster to be Director of Central
Intelligence. I remind Judge Webster that this a
continuation of the hearing yesterday and of course you
are still under oath. This post, of course, is an
.extremely important one. It is a position in which we try
to strike that appropriate balance between the amount of
secrecy that is necessary for effective intelligence
operations and intelligence gathering, and yet operations
that must be conducted within the bounds of law,
responsible to and accountable to elected representatives
of the people. So therefore, it is an important post,
indeed. We had a series of thorough questioning
yesterday, and, Judge Webster, as I indicated, I know you
understand that degree of questioning indicates no
hostility, but is an indication of the seriousness with
which we view our responsibility to be thorough and
complete, as well as fair in the examination of all
information in regard to this. particular appointment. We
appreciate your willingness to respond to the questions
which we asked yesterday. We. continue that process today.
I would say to the members and staff members who are
present, so that they can inform the other Members that we
do anticipate an Executive Session to take up some
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classified matters a little later on this afternoon,
perhaps as early as 4:00 p.m. We will be able to tell at
that time whether we will have further open sessions this
afternoon, at a later date, or if we have been able to
complete the open session matters today before we go into
Executive Session.
I'll begin the questioning today with Senator
Metzenbaum.
SENATOR METZENBAUM: Thank you Mr. Chairman.
Director Webster, after. we concluded the hearing
yesterday, in which I had about 10 minutes to ask you some
questions, your answers played on my mind regarding the
matter of investigating the conduct of the Attorney
General of the United States and, in assuming you find
something to be of significance, what then would occur.
You indicated that there is an ongoing investigation of
the Attorney General and others in connection with the
Wedtech matter. The Wedtech matter is truly a very
significant issue because we know that there was a meeting
in the offices of the Attorney General. We know that the
Army originally did not want to do business with them, but
that then Wedtech wound up with a no-bid contract. We
know that Mr. Wallach talked publicly about his close
personal friendship with the Attorney General and actually
inferred the fact that that's the reason he was hired as
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the attorney. Now what concerns me is how are we going to
find out the facts, because we have a problem, assuming
you come up with all the information and it provides a
basis for the appointment of an independent counsel, in
that the person who has the right to ask the court to
appoint that independent counsel is the Attorney General
of the United States, and he is'the one that is the
subject of the inquiry. What do you do? How does it
work?
JUDGE WEBSTER: Senator Metzenbaum, I assume you are
asking me that question' in a general context and not in
the context of an ongoing independent counsel
investigation?
.SENATOR METZENBAUM: That is correct. I think it
would be general, but it is certainly applicable if you
find.something_
JUDGE WEBSTER: I do not recall my saying that the
Attorney General was under investigation as of my
testimony yesterday. Certain matters are before an
independent counsel appointed to investigate the Wedtech
and all criminal matters that-may relate to it, but. let me
return to your. question. The process is one by which the
FBI or any other agency acquiring information or
allegations*of criminal activity by individuals who are
covered under the statute, reports that information'
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immediately to the Office of Public Integrity in the
Department of Justice. A preliminary inquiry begins.
That procedure is governed entirely by the statute and
there are certain time frames within which a decision must
be made. If it involves the Attorney General,. the
Attorney General should recuse himself. I know of no
situation that I can recall in which an Attorney General,
while in office, has been made the subject of such an
inquiry so I can't draw on precedent. But I can assure
you that if an Attorney General, who became the subject of
allegations as a covered person under the. Independence
Counsel Act did not promptly recuse himself, it would
quickly be in the newspapers.
SENATOR METZENBAUM: Would the FBI, or would you as
the Director of the FBI, feel obligated to make it a
public matter, or would it just be in the newspapers the
usual way it is around Washington, by leak?
JUDGE WEBSTER: Well, I would take the necessary
steps to be sure that he did recuse himself.
SENATOR METZENBAUM: Let me come back to a question
concerning the present Attorney General. Newspaper
stories have reported that there was a meeting held in his
office; that it was called at the insistence of close
personal friends of his; that it did result in a change of
position as far as the Army was concerned; and that it did
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result in the company obtaining a no-bid contract for
$30-some million. It would seem to me that if it isn't
illegal, it would certainly be highly improper; and you
indicated yesterday, I thought, that you were
investigating the Wedtech matter and, it is my
understanding, that included all aspects of it, including
the Attorney General. Are you now saying that you are
not?
JUDGE WEBSTER: No.
I said all aspects will be and
are being investigated and the investigation. is under the
control of an independent counsel.
SENATOR METZENBAUM: But that independent counsel,
I'm informed, has not indicated that his authority is
broad enough to investigate the Attorney General. That
investigation is related to Mr. Nofziger. But I'do not
understand that his investigation includes the matter of
Mr. Meese or any others who might be involved.
JUDGE WEBSTER: I would anticipate that if the
independent counsel considers that any other officials who
were covered under the Act are logical subjects of
investigation, that he would ask for authority to broaden
his investigation. If he did so, and it required the
approval of the Attorney General to make that
determination, I would anticipate that the Attorney
General, if he was the person included in the request,
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would recuse himself.
SENATOR METZENBAUM: We are aware of the fact that in
the Schmults.case, also a close friend of Mr. Meese, the
independent counsel not only asked for the right to
broaden the inquiry, but went beyond that and went into
court and-asked for authority to include Mr. Schmults in
the investigation. The Attorney General went into court,
or rather the Department of Justice did, opposing
broadening the inquiry and the court said that the
independent counsel did not have authority to broaden the
inquiry.
I don't know whether Mr. Meese was or was not
involved in an improper way or an illegal way as pertains
to Wedtech, and I'm not suggesting that he was. The basic
issue that I'm getting at is that enough has been
published concerning this matter that the people of this
country have a right to know the facts. The only place
that we can hope to get an answer as to what the facts are
is the FBI, because you are the only arm of government
charged with investigating violations of law. What
concerns me is: how do we get the answers as to whether
the Attorney General was or was not engaged in illegal
activities? .
JUDGE WEBSTER: Senator, I can only say that that is
now the responsibility of the independent counsel who has
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a .free rein in conducting his investigations. If for some
reason, the scope of his responsibility is not broad
enough to include the Attorney General, and if the
independent counsel believes it should be broadened, then
he should bring that to the attention of the Attorney
General, who should promptly recuse himself if he is the
person involved, and then another official can make that
determination.
SENATOR METZENBAUM: Now you have already indicated
that the FBI is investigating the entire Wedtech matter.
JUDGE WEBSTER: I have to qualify that. The
independent counsel is investigating it with such FBI
assistance as he desires.
SENATOR METZENBAUM: I see. Your total
responsibilities relate only to that which has to do with
your work for the independent counsel.
JUDGE WEBSTER: Absolutely.
SENATOR METZENBAUM: And beyond that you have no
further efforts.
JUDGE WEBSTER: We currently have an additional
investigation. I don't like to confirm or deny ongoing
investigations, but in view of your concern about it, we
have one that does not involve a covered person and we are
carrying that one out. But I thought that your questions
were really directed to covered persons. And I believe,
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if I'm not mistaken, that the court itself can broaden the
scope of the independent counsel's investigation. But I'm
aware of the court decision that you are talking about and
I simply don't know the answer. If there is a flaw in
that, that's a legislative problem. But as far as the
ability to investigate the Attorney General if the"
.independent counsel believes that he should, I.know of no
practical' impediment to doing so.
SENATOR METZENBAUM: Let me go to another subject:
the activities of Mr. Varelli and the placing in an FBI
terrorist photo album of Congresswoman Pat Schroeder. It
seems to me there were some others as well who were on
that list. Now I have before me the letter that you
addressed to Congresswoman Schroeder. You say that in
looking through . the. FBI terrorist photograph album, she
does not appear in that album. My question to you is,
does she appear in any other record or album or local
gathering of information having to do with terrorist
activities, or alleged terrorist activities, or in any
other way? Do you find her in some other place?. Your
letter specifically limits it to "a careful search of the
entire album that do not you appear in our album, nor have
you ever appeared in our album, nor would we ever have the
slightest basis for including you in our album." Now my
question is, and I think it is her question as well, does
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it appear in any other files, either at the central office
or any of the regional offices?
JUDGE WEBSTER: At the time that I had a telephone
conversation with Congresswomen Schroeder and then
immediately dictated that letter, this was the only
information I could answer with certainty because it
involves a much broader search of the records to determine
whether her name has ever been mentioned or referenced or
indexed. She is not the subject of any investigation.
And beyond that I can only say that we are trying to get
any information in which her name may appear. That sort
of information is available to her
.privileges. But I will try to get
much surprised if her name appears
cross-reference over many years of
under her Privacy Act
would be very
more than a
life. She is
to have been the
we are trying to
in any
public
not currently, and I do not know her ever
subject of a criminal investigation. But
get that information together and make sure it is
acccurate and give it to her.
SENATOR METZENBAUM: I'm sure that she would
appreciate it and I think the rest of us in Congress would
as well. I have additional questions. about Mr. Varelli,
but I'm told that my time has expired. Perhaps I can ask
them in the next round.
THE CHAIRMAN: Thank you very much Senator
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Metzenbaum. Judge Webster, let me just complete with a
couple of very brief questions along this line. Of course
you've worked with the Justice Department and the Congress
to develop and enforce strict guidelines to protect First
Amendment rights. Given that experience, I want to voice
my concern also about what happened in the case of former
.FBI informant Frank Verelli, who apparently was used in
the FBI's investigation of a group actively opposing U.S.
foreign policy in Central America, the so-called CSPES,
Committee in Support of the People of El Salvador. As I
understand it, the FBI special agent who handled Mr.
Verelli resigned after the'FBI began an internal
investigation. Let me just ask this question, what are
the control mechanisms that are supposed to make sure that
sensitive investigations of domestic political groups are
properly supervised?
JUDGE WEBSTER: The primary control element is found
in the Attorney General's Guidelines for Domestic Security
Investigations. These spell out the conditions under
which an investigation of an organization can take place
under the terrorism guidelines. In addition to that,
there are separate Attorney General guidelines governing
the use of informants and the management of informants.
There are very substantial Bureau manual provisions
dealing with the management of informants.. I dare say
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more care is given in.this effort in the FBI than any
other investigative agency in the world. We pride
ourselves on our ability to manage informants. I think
that there are the rare cases where we do not succeed tend
to prove the rule that we do manage our informants well
and keep strict accountability and records.
THE CHAIRMAN: How long.. was Mr. Varelli employed by
the FBI? Do you happen to know how long he was employed
or the value of his total compensation during that period?
JUDGE WEBSTER: I don't have his compensation. for you
but I'll be glad to. supply that to you for the record.
THE CHAIRMAN: That would be fine. We could receive
that for the-record.
JUDGE WEBSTER: He was opened as an informant I
recall in March.1981. He was closed in February 1982,
reopened in November 1982, and closed in January 1985.
THE CHAIRMAN: So a fairly long period of time,
especially in that second segment. Now which official was
directly in charge of Mr. Varelli?
JUDGE WEBSTER: Special Agent Flanagan was directly
in charge of the informant, taking the informant's
information and informant management until he resigned in
April 1984, I believe.
THE CHAIRMAN:- He resigned in April, 1984?
JUDGE WEBSTER: Yes, Mr. Chairman.
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THE CHAIRMAN: But then Mr. Varelli was continued on
in some sort of relationship with the Agency until January
of 1985?
JUDGE WEBSTER: That's correct.
THE CHAIRMAN: Now to whom did Mr. Flanagan report?
JUDGE WEBSTER: He reported to a supervisory agent,
Mr. Park Sterns.
THE CHAIRMAN: Now at what point in time did this
investigation or this operation begin to be conducted in
an improper way? Obviously you decided to suspend the
operation totally. When was the decision made to suspend
the operation?
JUDGE WEBSTER: The operation was not suspended
because of any alleged improper activities by the
informant or by the special agent. It was closed about
two years ago when the...let me be sure I'm.right on
that ...it was closed in June 1985 in consultation with the
Office of Intelligence Policy Review of the Department of
Justice which monitors these ongoing domestic security
investigations.
THE CHAIRMAN: Why was it closed?
JUDGE WEBSTER: Because there was no longer a basis
for remaining open.
THE CHAIRMAN:k There was not evidence under the
Attorney General's Guidelines that this organization was
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practicing political dissent in the country which we now
supervising the informant resigned in April of 1984.
have a sensitive investigation of a group that is
involved in some kind of activity covered by those
guidelines.
JUDGE WEBSTER: Not sufficient to warrant a
continuation.
THE CHAIRMAN: Now we've.seen evidence that someone
improperly obtained and falsified forms, and was putting
the photographs of people like Congresswoman Schroeder on
these forms. Some improper things were going on. I'm
interested in trying to determine how long these kinds of
activities may have gone on. Or how long improper
management of the informant went on before it came to your
attention as Director of the FBI.
JUDGE WEBSTER: The forms to which you refer were
probably -- although I can't say because we haven't been
able to determine when and how they were produced -- but
they were most probably generated even after Special Agent
Flanagan had left the employ of the Bureau. They are not
in our records. So far as I can determine they never were
in our records.-
THE CHAIRMAN: Well, in terms of the improper
activity, in other words we had a situation where the
informant was not being properly handled, where the agent
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believe there was lack of sufficient evidence of
subversive activity to continue an investigation against
that group. We are concerned about preventing the FBI or
any agency of the government from interfering with
legitimate political dissent in the country. What are the
procedures for notifying you as Director of these kinds of
situations when it is determined by anyone...how long does
it take from the time the first person in the Agency
determines something may be going on that shouldn't be
going on, how long did it take in this case when the first
person in the Agency learned-that something might be
wrong, before you, as Director, were informed about it.
I'm concerned with the effectiveness of the mechanism we
have put in place to determine that things shouldn't go
JUDGE WEBSTER: I want to be sure of my date, Mr.
Chairman. Sometime in April 1984, Agent Flanagan was in
Washington on other business, his car was broken into and
some of his.records were stolen. In the course of
reconstructing the.lost records, the Inspection Division
became concerned about some of his.activities and opened
an office of Professional Responsibility investigation.
He resigned during that investigation..
There was also about that time, some indication of
trouble between the agent.and the informant over the
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amount of money that was'to have been paid to the
informant. Prior to those incidents, the informant was
supplying us with information in an appropriate, and I
believe a proper way, although we still have not completed
our investigation because the informant, through his
attorney, declines to be interviewed under terms
acceptable to the government. 'So I can't be final about
that. It was only after the money issue surfaced that the
informant began to tell an entirely different story to
others than he had been telling to us.
THE CHAIRMAN: So the first problem surfaced in April
.1984 to the knowledge. of authorities in the Bureau..with
the breakin of the car and the investigation that
followed.
JUDGE WEBSTER: That's correct.
THE CHAIRMAN: And then how long was it before you
were personally notified that there might be something
going wrong with people who. were involved in activities,
operations, with a domestic political group that was
practicing political dissent?
JUDGE WEBSTER: I didn't anticipate that question.
I'll have to supply it for the record. I distinguish
between the activities of Mr. Flanagan and his informant
and the overall investigation for which there was a very
solid predicate.
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THE CHAIRMAN: Did you make the decision personally
to close out this operation with CSPES?
JUDGE WEBSTER: No I did not. That was made in the
normal way in which our domestic security investigations
take place when, on advice of the Department, there is no
longer a basis for continuing. That's part of the
process.
THE CHAIRMAN: How can you be assured, as Director,
that you know of.....in other words the American people
have looked to you as Director of the Federal Bureau of
Investigation to make certain that the authority of the
FBI is not abused in terms of legitimate and rightful
domestic political dissent. And if you are confirmed as
Director of the Central Intelligence Agency,/the American
people will look you principally to you to make sure that
the assets of that Agency are not used in any
inappropriate, illegal, or unconstitutional manner. What
system did you have in place to make sure that. you would
learn of any kind of complaint or problem that might arise
in terms of surveillance of domestic political dissent?
JUDGE WEBSTER: All allegations of impropriety are
immediately picked. up by our Office of Professional
Responsibility. They pass through me to the
Administrative Services Division for. review following the
completion of their investigation and then I monitor low
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level administrative action and personally participate in,
high level administrative action. If I can say to you as
a generalization, without trying to spell out all of the
procedures that we have in place, in my nine years of
office, there has not been one single succcessfully
maintained claim of a violation of a constitutional right
by agents of the Federal Bureau of Investigation.
THE CHAIRMAN: Senator Cohen and then Senator Specter
will follow.Senator Cohen.
SENATOR COHEN: Judge Webster, I was not quite clear
on the notice that you would feel compelled to give to
this Committee in the, event a covert operation. I would
like to read Bob Gates' testimony before the Committee
when he came for us for confirmation. He said "I have
committed to the Committee that I will. recommend to the
President against withholding prior notification under any
circumstances except the most extreme involving life and
death and then only for a few days, several days, my exact
statment." Is that your commitment as well?
JUDGE WEBSTER: I'd like to make it my commitment.
I'm not quite in the same position as Mr. Gates. He has a
far more intimate knowledge of what goes on over there,
and I hope he's right. I certainly would want to. I
would expect to.
SENATOR COHEN: I think if you don't, you're going to
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have Congress legislating 48 hours.
JUDGE WEBSTER: I know that absolutely. And I don't
want you to have to do that.
SENATOR COHEN: Do you want to think some more about
whether you are going to be in a position at some point to
make the same kind of commitment that Mr. Gates made?
JUDGE WEBSTER: I can make it to you now. I just ...I
want from the very beginning of these confirmation
proceedings until the end of the length of time I serve if
I'm confirmed, to have you feel that I have-maintained
every pledge that I have made to you.
SENATOR COHEN: What is your pledge now on the notice
to the Committee on covert actions?
JUDGE WEBSTER: My pledge is to notify you in the
timeliest way possible and that I cannot conceive of
...and I said that yesterday... that I can't think of any
that would not involve the promptest notification. That's
whether we talk about several days, or f"orty-eight hours,
or talk about as soon as possible. I would like to see
you notified in less than forty-eight hours if it's
possible to do so in a rational, reasonable way.
SENATOR COHEN: And what.if you had doubts about the
ability of this Committee to keep a secret?
JUDGE WEBSTER: Well I have no doubts at the present
time. If I had reason to doubt, I think I would have to
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discuss that with the Chairman and the Vice Chairman.
SENATOR COHEN: So you would. still notify the Vice
Chairman and Chairman of the Committee?
JUDGE WEBSTER: I would notify you that I had
something to tell you, but I had a problem in telling you
and see if you'd work with me on.it.
SENATOR COHEN: I'll come back to that later. I was
not exactly clear on what your statement was with respect
to the Abscam investigation or operation in which one
Senator was suddenly pulled in with your net.
JUDGE WEBSTER: We didn't say he was pulled in, he
walked in.
SENATOR COHEN: Well, he was invited in.
JUDGE WEBSTER: He was invited in by a crook, not by
the FBI.
SENATOR COHEN: Well that crook happened to be an
informant for the FBI.
JUDGE WEBSTER: He was not an informant Senator. I'm
glad you asked that question. He was a corrupt influence
peddler who was himself.tried and convicted, fined.$15,000
and sentenced to three years in the penitentiary.
SENATOR COHEN: How did he put out this so-called net
without FBI supervision?
JUDGE WEBSTER: We don't supervise people who are
under investigation. He was one of. those under
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investigation, and
tried in two ways,
the investigaton.
we were following his activities.
which worked very successfully through
We would either have both systems
or at least one would work.
undercover scenario that was
agent of the Arab shiek told
whom he was dealing
anybody that he was
that the
plausible, the so-called
all of the criminals with
shiek didn't want to sell
interested in doing business with.
Congressmen who would sell out their office and only to
bring people there who knew what it was all about and were
prepared to deal with the shiek's representatives.
SENATOR COHEN: Now the-shiek, that's FBI?
JUDGE WEBSTER: The shiek is a ficticious person. I
think he only appeared three times in the. whole operation.
SENATOR COHEN: The FBI said go out and get me
somebody who is corrupt.
JUDGE WEBSTER: No. We did not do it in that way.
It has been interpreted in that way. I could take you
back from the beginning to show you how we got into it,
and I know you don't want me to do that, but we were
receiving information about people who were in a chain
operation in most cases. They came in very rapidly and
the second procedure was that knowing that someone might
do as you suggest and go out and try to bounty hunt for
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unwitting members of Congress, our instructions to our own
people -- which incidentally was being monitored over
closed circuit television by representatives of the United
States Attorney under circumstances where they could
control the operation -- our instructions were no money
should pass to anyone until they had made criminal
representations. And that worked in the case you are
talking about.
SENTOR COHEN: My only concern about that particular
incident is that I think that as long as you have a
reasonable basis to. believe that public officials are
corrupt, you certainly ought to use full powers of the
office to go after them. But, there has to be.a reasonable
basis to go after those particular individuals other.than
let's see how many we can corrupt.
JUDGE'WEBSTER: I agree entirely with you Senator
Cohen and I testified yesterday, given another chance at
it I would, I believe after nine years of experience that
we would have found a better way to handle the situation
where we were suddenly confronted with Sylvestri, the
corrupt influence peddler, telling us he had substituted
someone who knew what it was all about and wanted to come.
We could do a better job next time,. This does not
represent a pattern and practice.
SENATOR COHEN: In 1978 during your confirmation
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proceedings you indicated that you were willing and
planned to put all of your assets in a blind trust.
Following the confirmation proceedings you did not do so
for the reason that some of the stock was of great
personal sentimental value, I should say, belonging to the
family of your wife.. Correct?
JUDGE WEBSTER: No the reason I did not do so was
that....two reasons, I decided to reduce my net worth,
pardon me my investment holdings by not taking a mortgage
on my home. And at the same time the financial disclosure
acts came out and it. was very complicated and it made it
seem of no particular advantage to a blind trust because
I'd still have to keep reporting and be susceptible to
conflicts even though I didn't know what was in it. So I
thought that in view of the fact I had reduced my holdings
and was making a full financial disclosure that it was no
longer necessary for. me to do it. In this particular
assignment I think there is far more sensitivity than
there is in the FBI. I have a screening arrangement
incidentally in the FBI and I have only had to recuse
myself on my own account in cases involving family members
associated with various businesses who have come on.
SENATOR COHEN: Is there any reason why you simply
couldn't take your assets and put them in a blind trust
today as opposed to a qualified, diversified blind trust?
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'JUDGE WEBSTER: Yes, I think there is a very good one
Senator. This one makes far more sense. It's provided
for in the statutes. It takes it out of my control. I
don't know officially what's in there. In other words,
I'm not entitled to know any more what they have. If they
sell something they don't tell me. If I leave it in a
blind trust, I still must disqualify myself from every
holding until that holding has been sold by the trustee.
I think it is unnecessary and unfair to require a person
who volunteers for public life to have to roll over his
securities at great personal cost. There is a low cost
basis in most of what I have, because I haven't been
trading or investing over these years and the law provides
for a qualified investment trust that fully protects the
government and does not simply put the burden back on the
Agency to disqualify me from everything I hold until those
holdings are rolled over for no appropriate reason.
SENATOR COHEN: So you are concerned about the tax
implications. or consequences of having to sell the stock
and of a substantial capital gain.
JUDGE WEBSTER: That't certainly a factor, Senator.
SENATOR COHEN: I think you had it about right when
you said that you took the position that as FBI Director
you reduced your net worth. I think anyone on this
Committee would probably agree with that. My time is up.
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THE CHAIRMAN: Senator Specter and then following
Senator Specter, I'll call on Senator DeConcini. Senator
Specter.
SENATOR SPECTER: Thank you Mr. Chairman. Judge
Webster we have talked about the circumstances of the Iran
matter and you have testified on generalizations. There
has been some comment of the dissatisfaction by the
Intelligence Committee on the. disclosures which have been
made by the CIA. I would like to ask you in the context
of the specific information which we know what action you
would have taken had you been Director as a basis for our
evaluating confirmation of you for that position.
The then-Director of the CIA testified before the
Intelligence Committee on November 21, and provided
information which omitted certain factors such as the
diversion of funds from the sale of arms to
Iran... diversion to the contras. There was no information
in his statement concerning Ghorbanifar who was the key
Iranian contact having failed two lie detector tests.
There was no information that the CIA had proceeded
without a finding when the CIA facilitated the transit of
the airplane. There was no information provided by the
then-Director of the CIA that the effort had been made to
have a "finding applied retroactively to actions already
undertaken by the CIA. And my question to you is had you
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been the Director-of the CIA, and had known of those facts
when you appeared before the Intelligence Committee on
November 21, 1986, whether you would have made those
disclosures to this Intelligence Committee?
JUDGE WEBSTER: Senator Specter, in deference to
Director Casey I don't know what he knew,. but your
question was if I knew these things would I have disclosed
them. The answer is yes.
SENATOR SPECTER: The issue came in a pointed fashion
on the confirmation proceedings of Deputy Director Gates
who had a significant role in the preparation of testimony
of Mr. Casey. Deputy Director Gates testified that he had
taken the responsibility for two or three drafts and the
substance of Mr.. Gates testimony was that he had
information about the diversion to the Contras. He
disagreed about?Ghorbanifar saying he knew about only one
lie detector test. He knew that the activities had been
undertaken on the' facilitating of the plane without a
finding and he knew about the effort to have the finding
applied retroactively. My question to you is should
Deputy Director Gates have inserted those matters in the
testimony which he knew was going to be presented by the
Director to this Committee?
JUDGE WEBSTER: That's a tough question because,
again I'm only.answering in the context that you've
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presented for me and there may or may not have been other
circumstances that would flush out the problem that might
confront someone in the position that Deputy Director
Gates had at that time. I would hope that if at any time
a Director was about to-make a statement to this Committee
or any other Intelligence Committee having appropriate
oversight, which the Deputy Director knew contained
material misstatements. of fact, that the Deputy Director
would, in the most forceful way, urge his point. Now I
distinguish between differences as. to differences of
opinion as to policy or action where the responsibility is
the ultimate responsibility of the Director. But the
responsibility for truth is a combined responsibility and
those who are preparing testimony for one who has to give
it, have, an obligation to insist upon truthful testimony.
Now if that person, if the Director then goes forward
and gives untruthful testimony, I think that there is a
responsibility for the person who shares in that
responsibility of truth to take some appropriate action to
correct the record. I'm not sure nor would I want to try
to answer that definitively here, where that person should
go, because I value loyalty. I would expect it in all
those who work with me. And I am head of an Agency. I do
not expect them.to join with me in an untruth.
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SENATOR SPECTER: I appreciate the answer you have
given. The answer that you've given goes beyond the scope
of my question in terms of the Deputy Director preparing
testimony which-then may not have been used by the
Director and then the duties which would involve the
Deputy Director in that context. That is not the factual
situation presented here that f have presented to you.
And I do not put it in the terms of a hypothetical; I put
it in terms of a fair statement of what the record showed
and what the hearing showed in this very, room within the
course of several weeks ago.
JUDGE WEBSTER: I thought I was assuming in my answer
to your question that in the situation where the Director
gives testimony which the Deputy knows to have been
untrue, that there be, that it is incumbent on him to take
some action to correct that.
SENATOR SPECTER: Well, I think that's a commendable
position and I. would certainly agree.with you on that.
When you make a statement about the Director's statement.
having material misstatements of fact, I think it is
important to focus on the factor that these facts which I
have enumerated for you, were omitted. Some might
therefore say that they are omissions as,opposed to
mistatements, but I think as to a legal conclusion it is
the same. When the totality of the statement presented
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1 omits material statements, I think that it constitutes a
7
8
9
10
11
12
13
0
misstatement of fact. But I just want to focus on these
items having been omissions. JUDGE WEBSTER: I agree that
a purposeful material omission of fact is the equivalent
of a misstatement of fact to this Committee. Where I
think there is an avenue of, an area of discussion and
exploration is whether that.omission was purposeful and
distorted the testimony itself. There will always be
situations when you have to decide how much you want to
include for purposes of a statement in order to tell the
full story. And I certainly wouldn't want to suggest that
because you left out a horse or an ox or something that
did not distort the picture that that made it a material
omission of fact. It has to be material. I think we're
both talking about the same thing., But a purposeful one,
not one that was left out because the researchers failed
to bring it forward, but one that was considered, that was
important, that should have been presented and was
purposefully omitted. That's a material omission of fact.
SENATOR SPECTER: Judge Webster, my next question to
you is one which I will not press you to answer at this
moment, until you have had a chance to review the record
and to confirm the representations which I have made here
today because it is a very important question. And that
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question is did Deputy Director Gates act properly in
having a hand in the preparation of Director Casey's
testimony which omitted the-important references of
diversion of funds to the Contras, Ghorbanifar's failing
the lie detector test, the absence of a finding and the
subterfuge to have a finding applied retroactively. If
you care to answer that now I'd'be pleased to hear it, but
I. would understand because of the importance of the
question and its bearing on the qualification of Deputy
Director Gates'to continue to serve in that position. If
you would prefer to review the record as to the factors
which I. have brought to your attention, I will understand.
JUDGE WEBSTER: Senator Specter, I appreciate your
realizing that I could not possibly answer that question
at this hearing. I think you would impose an impossible
burden on me if you expected me to carefully and
thoroughly review a lengthy record on this subject during
these confirmation proceedings. I will make an assurance
to you that-as a part of. my responsibilities, as I would
in any open situation, that I would review all of the
activities of the Agency including those of its officials
including the Deputy Director at the earliest opportunity
and I would take appropriate action if any was required,
as a result of that. I just think it would be unfair to
expect me when two Committees of the Congress and an
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independent counsel are trying to. get all the facts out,
to come to a hasty rush to judgment on a very senior
official in the Agency.
SENATOR SPECTER: Well, Judge Webster, I'm not asking
you to answer the question. now because I understand that
import. But it-is likely, as a matter of scheduling, that
your confirmation hearings will be pending at least until
we return from the recess and.that there will be at least
a period of two weeks. Speaking for myself, I am very
interested in your response to that question because I
think it is very important as to the continued service of
Deputy Director Gates and the adequacy of the information
which was presented to this Committee by Director Casey,
which Deputy Director Gates had a share in the
preparation. I think you can review that if you take a
look at Deputy Director Gates' testimony to this
Committee, which was private, later released on December
4, 1986 and you review the proceedings before this
Committee.
JUDGE WEBSTER: Senator, I don't want to, but if you
insist, I'll review the testimony.. But I don't know that
that's enough. If you think it's enough for me to draw an
opinion, I'll be glad to look and see if I can. I can't
guarantee.that I would want to express an opinion on that
narrow a record.
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SENATOR SPECTER: Well, I would appreciate it if you
would, because I think it is important. I think it is, it
goes really to the crux of the matter as to appropriate
disclosure by the CIA. It comprehends three factors. It
comprehends, number one, the testimony which Director
Casey gave to this Committee, and the absence of
specification of very material facts. It goes, number
two, to the competency of Deputy Director Gates, who had a
,significant hand in the preparation of Director Casey's
testimony, and it goes, number three, to the factor which
you raised here today, which I had not raised, and that is
the duty of the Deputy Director of CIA to inform this
Committee of material facts which were not disclosed by
the Director.
Let me move on briefly to another point or, two, Judge
Webster. You testified yesterday that if the President
had not made a disclosure to the Intelligence Committee or
the Congress as.required by-law, that you would resign.
Correct?
JUDGE WEBSTER: I think that's my testimony. That's
right.
SENATOR SPECTER: My question to you is should you be
faced with that unpleasant alternative and felt that
failure of the. President to comply with the law required
your resignation, would you then inform this Committee of
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facts which you considered to be required by law for
disclosure?
JUDGE WEBSTER: I would do so to the extent permitted
me by law, and I know of no reasons why I could not, but
only after I had resigned.
SENATOR SPECTER: -Judge Webster, you testified
yesterday that you would not participate in the Cabinet
upon confirmation as Director of CIA. That appears to me
to be, to propose a grave difficulty in terms of the role
which the Director of the, CIA has in coordinating
intelligence. In a sense, the DCI is in a supervisory
capacity over other Cabinet officers, including the
Secretary of Defense, who has intelligence gathering
responsibilities in his Department and intelligence
gathering in the Treasury. It also seems to me to be
problemsomein the context of exerting sufficient
influence, commensurate with your knowledge, and your
role, on advice to the President. For example, on trying,
to dissuade a President from selling arms to Iran.. .having
the full value of that kind of advice, and having a full
voice in the Cabinet on the quality of that interchange.
Wouldn't you be giving up a great deal and wouldn't
there be a significant void if you were not to participate
as a Cabinet member?
JUDGE WEBSTER: Not in my opinion, as much as the
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difficulties that grow out of having a Cabinet
relationship and.the privilege of expressing personal
opinions and becoming an advocate for policy provisions
across the whole range of government. In the course of my
discussions with the President and his chief advisors, we
all agreed that this decision would not impact upon the
direct access, which ,I have been promised, to the
President -- perhaps, indeed, more direct access than most
other Cabinet members currently enjoy. I was also
promised the principle of awareness, that I would be
included in all meetings which related to major foreign
policy or national security issues, that I would have the
opportunity to participate in those Cabinet meetings and
in any innercircle meetings of limited numbers of ranking
officials.
SENATOR SPECTER: You're saying that you would
paricipate in some Cabinet. meetings?
JUDGE WEBSTER: That's correct, any in which foreign
policy issues or national security issues are likely to be
involved, requiring the input of-the Intelligence
Community. I think the importance of my participation is
to be aware of concerns and the ability to be sure that
.the quality of the intelligence and the analytical effort
that is developed through the Intelligence Community is of
a degree of excellence that will permit the policymakers
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to make informed and wise judgments.
SENATOR SPECTER: Judge Webster, I would ask you to
reconsider that position in terms of the national interest
and not feel bound by what you stated here in these
proceedings should you be confirmed. I would just ask you
to reconsider it. You'll have to be the judge of that,
obviously, but I have a sense that it would deprive the
Cabinet and deprive the process of very valuable insights.
It is_ hard to know which Cabinet meetings are going to
take up the areas of your expertise. And it is hard to
know when another meeting doesn't raise some subject for
you which would be very useful. I would at least ask you
to reconsider.
JUDGE WEBSTER: I appreciate that. I.don't know that
I can reconsider it, but I will consider the aspects of
what you've said and we've already put in some
bureaucratic procedures in place to make sure that I
receive the kinds of materials that Cabinet officers
receive and awareness of the meetings, and so forth. But
thank you for your comment.
SENATOR SPECTER: But, it would save you one burden-
of coming to the State of the union speeches. That might
be worth part of it. Thank you very much, Judge Webster.
Thank you Mr. Chairman.
THE CHAIRMAN: Thank you, Senator Specter. Senator
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DeConcini..
SENATOR DECONCINI: Judge Webster, I believe that
you-'ve had some questions regarding Frank Verelli-and the
FBI conducting some breakins and what have you. Am I
correct that there is an internal investigation underway
into those charges?
JUDGE WEBSTER: Yes there*is, Senator.
SENATOR DECONCINI: And we cannot take that up at
this time particular time?
JUDGE WEBSTER: I think probably not, but I can say
this much for the record because the investigation has
been concluded with the exception of the interview of Mr.
Varelli. The FBI can find no evidence of such breakins.
SENATOR DECONCINI: Okay, and we can be briefed on
the evidence that was presented in the investigation.
JUDGE WEBSTER: Well, so far as we can determine, all
of the other agents who were available for interview have
explicitly denied it, and I don't know of anyone who has
.come forward with explicit evidence that any.agent was
involved.
SENATOR DECONCINI: Does that include administering
any polygraph examinations?
JUDGE WEBSTER: No polygraphs on that investigation.
SENATOR DECONCINI: Is that normal that there would
not be polygraphs on such ...
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JUDGE WEBSTER: Normally, polygraphs are administered
where there is an issue of fact, where two people are
giving different testimony on a particular issue.
SENATOR DECONCINI: And you determined that there was
no difference between the accusations of Mr. Varelli or
anyone else, informants versus the FBI position?
JUDGE WEBSTER: Other than Mr. Varelli who declines
to.be interviewed at the present time.
SENATOR DECONCINI: What safeguards exist to control
FBI warrantless searches for intelligence purposes?
JUDGE WEBSTER:. There are very few warrantless
searches.
SENATOR DECONCINI: How many are there in a twelve
month period? Is that a classified number?
JUDGE WEBSTER: I think that is classified. I'm not
sure that I have the exact number, but if I have it I'll
give it to you in the closed session.
SENATOR DECONCINI: Will you please? And what are
the procedures? Is that classified too?
,JUDGE WEBSTER: I beg your pardon?
SENATOR DECONCINI: What are the safeguards and
procedures for. such warrantless searches? Is that
classified too?
JUDGE WEBSTER: We use the basis for our request the
Foreign Counterintelligence Guidelines of the Attorney
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General. We make full affidavits of all facts that
support the authority of the Attorney General to issue a
warrantless search. If you are focusing on the CISPES
investigation, I can confirm to you that there were no
warrantless searches.
SENATOR DECONCINI: There were no searches?. Well,
although I'm interested in that case to a minor extent,
I'm really interested in knowing what the procedures are.
I'm sure you have them. I just don't have them and if
someone could give them to me. I don't know if they are
of a classified nature or not.
The FBI electronic surveillance for intelligence
purposes requires a court order, I know, under the Foreign
Intelligence Surveillance Act of 1978. In 1984 and again
in 1986, this Committee recommended the development of a
similar court order procedure for intelligence searches so
that, the FBI would have statutory authority, subject to
the constitutional checks of a judicial warrant. Do you
believe it would be a good idea to enact such legislation?
JUDGE WEBSTER: Senator DeConcini, I believe the
position of the Department of Justice has been that the
present procedure-is working satisfactorily. I have
testified in response to questions, but I believe this
Committee, and other Committees in the past, that we are
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111 working well with the FISA statute and if you wanted to
and felt it necessary to adopt similar legislation for
warrantless searches that we could work with that.
SENATOR DECONCINI: I don't mean to put you on the
spot., but your own personal opinion, after operating the
FBI for nine yearrs and some months, as its Director,
would be valuable? Do you have a personal opinion? I
just am interested in your observation having been there
on the first hand.
JUDGE WEBSTER: There have been so few warrantless
searches and most of them have been in counterintelligence
areas, that it has really not risen to a problem. We did
have a problem in domestic security searches which. had
been conducted without warrants, and the Supreme Court
said you couldn't do that and then we had national
security wiretapping which was presumed to be under the
authority of the President. And while the Executive branch
has never yielded in that authority, it did agree to
support and abide by the Foreign Intelligence Surveillance
Act. Prior to that Act, it was becoming increasingly
difficult for the FBI to get approvals for electronic
surveillance because of concern of those immediately
around the Attorney General, that some how he would become
exposed to personal liability. And the gloss on the rules
became so heavy that it was hard for us to work. The law
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SENATOR DECONCINI: One last.question. Judge, your,
statement indicated that you will.have or you have already
made arrangements with the President to have direct access
whenever you feel that is necessary. Based on what you
know of the CIA what do you anticipate that amounts to?
Do you think that-amounts to briefing the President-and
seeing him on a scheduled basis as weekk as emergencies?
What would be your schedule of keeping a President well
informed, realizing emergencies arise where you have-t
24
that the Congress passed in electronic surveilllance has
worked extremely well as far as the FBI is concerned. And
I'm frankly glad it's there. I can say that because it
was just being adopted at the time I was up for
confirmation in 1978..
SENATOR DECONCINI: I take it, Judge Webster, you
don't think it is necessary to 'go any further? If
Congress elects to do that, that's fine? You think the
Agency can work with it?
JUDGE WEBSTER: You've stated my position exactly.
call him and tell him instantly, but for normal day-to-day
operations of the CIA.
JUDGE WEBSTER: Without going into too much detail in
an open session, the President has frequent and regular
briefing papers prepared for him by the Agency and those
would continue. There will be, I think, increased
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circumstances when.I will want to discuss the content of
those papers personally with the President. There will be
other situations in which I will want to participate with
the National. Security Advisor in making certain that the
President is aware of particular intelligence matters that
impact upon the national security. And I would have no
problems and in fact would want to participate in joint
discussions with the National Security Advisor. There may
be other circumstances in which I would feel that I had to
have my own unvarnished views and my own unvarnished
opportunity to present our intelligence to the President.
SENATOR DECONCINI: You would not foresee a scheduled
meeting.with the President on a time certain,
notwithstanding any emergencies?
JUDGE WEBSTER: That's really up to the President.
But I will expect to exercise that privilege because
unexercised privileges disappear.
SENATOR DECONCINI: Well it concerns me and I don't
know enough about it, but it seems to me if the past
Director had scheduled meetings, some of these things
might have come to.the President's attention. I'm not.
sure that they did or didn't but my only observation, from
what I know of the preliminary investigations of the
present problem with Iran and the Contra affair is that
the Director either withheld or did not meet with the
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42
1 President frequently enough and tell him what was going
on. I just leave that purely as a suggestion. It seems
to me that if I were in your shoes, or if I were in the
President's shoes, I'd like to see the CIA Director once a
week.
JUDGE WEBSTER: I appreciate your comments, Senator,
and I agree with them. I do not believe in.the principle
of plausible deniability. I have excluded it entirely
from the FBI and I do not believe it should be applied at
the national security level.
SENATOR DECONCINI: I agree with your assertion that
you did. Thank you Judge Webster.
THE CHAIRMANN: Thank you very much Senator
DeConcini. I have to go to the floor now to vote and I
will return. Senator Cohen will preside. I do want to
make one thing clear for the record in that we are not
here for the purpose of debating-the qualifications of any
other person, but I do want to state that. it is the
opinion of the chair, the chair can speak only for
himself, that Deputy Director Gates has rendered
outstanding service. I would say that he has performed
during the time as acting Director with extreme candor. I
would not want to have conveyed to you that there is any
unanimity of opinion on this Committee. that the Deputy
Director had acted in any improper fashion. Every Member
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of the Committee. is free to reach his own interpretations
of the actions of the Deputy Director. This Senator
.happens to think that he has performed in . an. outstanding
fashion and is continuing to render outstanding and very
candid services as Acting Director during this difficult
period. He has been extremely open with this Committee
and has kept this Chairman extremely well informed as to
activities of the Agency. I would. want the record to very
clearly reflect the view of this Senator on that matter.
I'll turn it over to the vice Chairman.
SENATOR COHEN: Senator Hecht..
SENATOR HECHT: Thank you very much Mr. Chairman.
I'd like to echo the words of Senator Boren. 'I too feel
that Bob Gates has acted very well and is a very qualified
individual, and I'd like the record to reflect that at
this time.
JUDGE WEBSTER: Senator Hecht, may I say that I share
the same view, and I'm looking forward to the privilege of
working with Mr. Gates.
SENATOR HECHT: He is a professional. He's trained
in aspects. The aspects he doesn't he has very qualified
people handling that and I'm, very,. quite impressed with
hi.m.
One reason I'd like to follow.up from yesterday's
questions. Last year the Senate passed a resolution
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0
requesting an investigation into many of the questions I
brought up yesterday, the. handling of Judge Clairborne. I
still feel it's very, very relevant; the point being how
you handle agents, how you use agents for targeting. Not
individuals, but how you target your agents. And how you
discipline your agents.
You testified yesterday that although Mr. Yablonsky
handled his investigation. of Judge Harry Clairborne in a
lawful manner, there are several things that occurred out
there that you were not proud of. What were?you not proud
JUDGE WEBSTER: Well, normally I would respectfully
decline to answer that question because it would invade
the privacy of the agent and we try to protect that, but
this has already been a matter of public record through an
official disclosure because of the intense interest in Las
Vegas.
I was not proud of the way he had handled a
complimentary dinner for his family at a casino, insisting
that he had been promised a complimentary evening. And I
lrequired that he repay the money, the value of that
dinner.
As I said earlier, I was not proud of his bad
judgment in seeking to get information about a candidate
for office who before he allowed him to come in to be
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interviewed.
Those were the particular incidents that I thought
were not worthy of the fine performance that I believe he
had otherwise given the FBI and his country.
SENATOR HECHT: Following through, I'm going to bring
up this candidate for office. When did you find out that
Mr. Yablonsky, I'll call him Joe, had gone into this and
sought information on his background?
JUDGE WEBSTER: I can't give you the exact date, but
as soon as we received a complaint from Mr. McKay, we.
.opened an office of Professional Responsibility
investigation into it.
SENATOR HECHT: Okay, so you had a memorandum from
McKay and then'that's how you found out about it.. Not
before?
JUDGE WEBSTER: Well, I'm not, I can't recall with
certainty whether Mr. McKay'complained to the newspapers
or the newspapers went with the story, or whether he wrote
to me or the Attorney General. That's not clear in my
memory, but as soon as it became, it was called to our
attention in that way. If you're asking did I hear it
from anyone in the Las Vegas office, the answer is no.
SENATOR HECHT: So you had no idea at all that Mr.
Yablonski was doing this?
JUDGE WEBSTER: No, Senator, none at all.
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SENATOR HECHT:. And as of yesterday, I am trying to
remember exactly, what type of disciplining action did you
take against him?
JUDGE WEBSTER: Mr. Yablonski was censored and placed
on probation. He was called back to Washington, and I
personally presented his letter of censure and expressed
my disappointment in his performance. That,.for a Special
Agent who had already been eligible for retirement for a
number of years and spent his lifetime in the Bureau,
being placed on probation during his last months in
office, was a very severe action, and was so regarded in
the FBI and by him.
SENATOR HECHT: But it was brought out yesterday that
when he retired he was given a recommendation; was he not?
JUDGE WEBSTER: I don't believe so. I don't know what
that is all about. The only communication .I had with him
is the kind of letter that I send to retiring Special
Agents at the command level.
SENATOR HECHT: Just routine; nothing more, nothing
less.
JUDGE WEBSTER: That's right.
SENATOR HECHT: Okay, let me go on to another point I
brought up. You cleared that up. Thank you, very much.
I brought up about the IRS supposedly in newspaper
talk making a deal. Did the FBI conduct a sting against
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the Director of the Nevada IRS office, Gerald Swanson, who
opposed making a deal with Joe Conforti, the brothel
owner, and if so, why?
JUDGE WEBSTER: I think that was an IRS
investigation, Senator Hecht. I don't believe the FBI was
involved in it.
SENATOR HECHT: Not at all*in that at all?
JUDGE WEBSTER: That is my understanding of it.
SENATOR HECHT: Did the FBI open a bribery
investigation of a respected Las Vegas homicide detective,
Chuck Lee, a polygraph operator, who had earlier cleared
Judge Claiborne of other allegations? Is the name
familiar to you at all?
JUDGE WEBSTER: Yes, vaguely. There -- I am not
certain whether we opened an investigation involving him.
There were some allegations of seedy conduct out there,
and I don't believe that we had a specific investigation
as to him, but I do believe that he was involved in the
investigation in some way.
SENATOR HECHT:. Well, could I ask you to respond to
that in the next couple of weeks before any action is
taken?
JUDGE WEBSTER: I'd be happy to do that, Senator.
SENATOR HECHT: Would you do that? I couldn't expect
you. to remember everyone involved in that case.
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What probably cause did the FBI have to single out
.these individuals who were later cleared of any
wrongdoing?
JUDGE WEBSTER: That is a very general question, as I
am sure you understand. There was grounds to open an
investigation on Senator Claiborne -- I_said it again.
Congressman Claiborne -- Judge' Claiborne -- I beg your
pardon. Judge Claiborne I guess it hurts to say that
-- and it was based upon representations by a convicted --
rather a convicted felon fugitive, who offered information
which was subsequently added to by additional
corroborative evidence,"that bribes had been paid to Judge
Claiborne in connection with a particular criminal trial.
And that was a very substantial predicate to open an
investigation. It later expanded into an income tax
evasion case in which the Internal Revenue Service was
involved. The case was tried -- he was indicted on both
counts.. Went to a hung jury. In retrying Judge
Claiborne the Department of Justice made a decision to
drop the bribery counts because.they were really not too
convinced that the government's witness would be a good or
.credible witness before a jury.
And so he was convicted on the income tax evasion
counts which were brought forward in the second trial.
SENATOR HECHT: Getting back to this.$40,000 in the
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bank and the bank error, one final follow up on that. You
testified that the FBI investigated the matter but did not
pursue it because Mr. Yablonski claimed his wife kept the
books. I am told a Federal grand jury investigated the
error. My question is, if Mrs. Yablonski was aware the
$40,000 did not belong to her, why was she not prosecuted?.
JUDGE WEBSTER: I really'don't know the answer'to
that question except that the prosecutors who have the
prosecutive decision in this matter determined that there
was no basis for prosecution. That is not an FBI
function.
SENATOR HECHT: Is that not a Federal crime?
JUDGE WEBSTER: It may be a Federal crime if there is
evidence to support it, but those who.exercise the
prosecutive discretion did not find a basis for going
forward, and that was not the FBI.
SENATOR HECHT: My time is up. I have got one final
question here. We passed by.unanimous consent, in the
closing days of the last session last year, about a
follow-up on allegations of misconduct. Would you
.recommend to the Senate Judiciary Committee that we have
that. investigation?
JUDGE WEBSTER: The actual resolution that was
adopted called for a Senatorial review by the' Judiciary
Committee of the follow-up to the Select Senate Committee
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1 on.undercover operations, which returned this lengthy and
2. extensive report,. and to see whether the recommendations
3 had been fully and adequately implemented by the FBI and
4 other law enforcement agencies.
5 We are certainly ready to respond to any such
hearing. We would not be ready to respond to some
allegation that we had been engaged in a lot of misconduct
when the record is quite to the contrary. But I believe
the resolution as passed calls for a review of how well we
have implemented the procedures recommended in the
original report. And I ,certainly can tell you the FBI is
prepared to respond to the Committee if it desires to hold
such hearings.
SENATOR HECHT: One last few moments -- let me just
have 30 seconds...
SENATOR COHEN: 30 seconds.
SENATOR HECHT: I really appreciate the candor. We
have had a lot of people testify before us in the four
years that I have been in the U.S. Senate. You said you
took. full responsibility for putting Mr. Yablonski in Las
Vegas. You take full responsibility for hisactions. You
took full responsibility for bringing him back to
Washington and censuring him. And you were aware of all
this going on, and I appreciate the fact that you have not
evaded any of my questions.
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51
elsewhere, I am not sure, I attempted to explain that we
do not have criminal investigative files on the two
JUDGE WEBSTER: Thank you, Senator. I appreciate
.SENATOR COHEN: Judge Webster, there have been a
number of recent reports that indicate that the FBI has
maintained some files on two Catholic bishops that have
been active in civil rights and the peace movement over
the years. Much of that information was gathered back in
the '60's and the '70's, prior to the issuance of certain
guidelines which .I believe became effective in 1976. But
there is information contained in those files since 1976.
I was wondering if you could tell the Committee how it is
that the FBI goes about collecting information on
particular individuals?
JUDGE WEBSTER: In testimony before the House of
Representatives Judiciary Committee and I think perhaps
bishops that you are asking about. Their names appear in
other files for which we have legitimate investigative
interests, either at the criminal level:or pusuant to our
foreign counterintelligence responsibilities.
A procedure exists in the Bureau for cross
referencing names which appear in particular files so that
they can be retrieved at some future date by persons
investigating other things. I have gone back and had our
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people go back to see the circumstances for these
individuals being included, and I believe almost without
exception, they were included in lists of names of people
involved in certain organizations or activities for which
there was a legitimate investigative interest. They were
not singled out, so far as I can determine, because they
were bishops, but because they were at a particular place
involved in a particular way, and the agents responsible
for entering records in the file simply indicated their
names for clerical cross reference. There are no files on
those bishops.
.SENATOR COHEN: Quite a few pages of cross
referencing.
JUDGE WEBSTER: Pardon me?
SENATOR COHEN: There are quite a few pages for cross
referencing purposes of an individual.
Yes, and that is unfortunately a
result of an inartful way that our Freedom of Information
Office used to disclose the presence of information.
There might be 350 pages of information about a particular
activity in which the individual's name might be mentioned
one time. And in responding to the FOIA request, they
would say we have a reference with 350 pages, because the
person might want to read the whole report. But it is
not as lengthy or as extensive as those responses by the
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FOIA office would include.
SENATOR COHEN: Tell me a little bit about how that
cross referencing system works. Let's suppose, for
example, that we have a Soviet delegation, or a
representative or spokesperson for the Soviet Unioin.comes
to this country and goes around and gives a lecture on
arms control. Would anyone in'attendence at that
particular lecture, because you had counterintelligence
responsibilities, be listed as someone who attended the
lecture?
JUDGE WEBSTER: Probably not in that situation, but
we probably would identify the leaders of the meeting if
they were identifiable and principal participants at the
meeting in a counterintelligence type situation.
SENATOR COHEN: So if I were to participate. in a
debate or a meeting on arms control, let's say, with
Georgi Arbatov or some other high ranking Soviet official
or spokesperson for the the Soviet Union, and I were to be
.on the same panel or platform or a guest in the audience
who got active in the debate, would I be listed as part of
the cross referencing system?
JUDGE WEBSTER: The original -report would probably
include the panelists in the exercise. It would then be
up to the agents who would have to designate cross
referencing whether or not in the circumstances the names
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of all the panelists should be included. We have. been
trying. to tighten --
SENATOR COHEN: What are the guidelines?
JUDGE WEBSTER: The guidelines are not adequately
clear. They should be essential information in.criminal
matters. Relevant.information in counterintelligence
matters..
We recently completed a planning and evaluation study
of this process, and we have been implementing some
changes to tighten. up our procedures.
Ironically, .a year or so ago, last year, one of the
problems was that we'did not believe that the officers
were adequate in their cross referencing some of the
files. I very recently sent out another communication to
the field emphasizing the other end of the fact that names
were not to go into the file unless they could articulate
a reason for doing so.
SENATOR COHEN: 'So if I were to-file a Freedom of
Information application, I might find my name in a file
listed with the FBI that I had been in attendance or a
participant as a panelist_in.a arms control discussion
with a top Soviet official?. .
JUDGE WEBSTER: If it was in a file involving a
Soviet official, it would be, classified and it would not
be available to you or to anyone else.
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13
SENATOR COHEN: That only pertains to
counterintelligence activities?
JUDGE WEBSTER: That's correct.
SENATOR COHEN: If it were a group under
investigation, a peace group as such, would that be
available to the individuals involved?
JUDGE WEBSTER: If there were an ongoing
investigation, there would probably be an exemption claim
which would preclude its availability.
SENATOR COHEN: So as a practical matter, citizens
have no way.of knowing whether or not their names are
ending up in the files of the FBI of some particular
group, peace group, civil rights group, that's currently
under investigation unless if the investigation is
terminated?.
JUDGE WEBSTER: I think your answer is correct. And
even if it were closed but still classified, it would not
be available. But I would like to clarify because I was
going along with your hypothetical that it was not
appearing -- the Soviet representative was not appearing
before a group in which we had an interest, your name
wouldn't automatically or even likely be mentioned or
cross referenced.
SENATOR COHEN: Well, if the Soviet delegate was
appearing before a group, let's say a ,group that is
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stirring up controversy but is dedicated to promoting
better relations between the Soviet Union and the United
States, identified nationally as a peace group, peace
links, some other group, would that be then be subject to
notation?
JUDGE WEBSTER: I'd like to be able to answer that
question, but I know we are going to have a closed
session. I'm so often accompanied by spectators who have
an interest in what I have to say about these things, and
I really would rather put that one off if I could.
SENATOR COHEN:. In 1978, you indicated you had
membership in a couple of clubs which restricted their
membership to white males. They were the St. Louis
Country Club, the Noonday Club, the University Club, and
the Veiled Prophet Society. In your response to this
Committee's questionnaire, you indicated that you.were a
member of both the Noonday Club and St. Louis Country
Club.
Do they maintain their same policies?
JUDGE WEBSTER: As I told the Senate Judiciary
Committee in 1978, I really believe that I'm as color
blind as anyone in the room and that I asked to-monitor
clubs, and if I thought they were practicing discrimination
or had any rules or regulations that were discriminatory.
in a way that I could not accept, I would leave.
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57
2
The Noonday Club now has women members. The St.
Louis Country Club has women members. I'm not sure whether
they have any black members or not. That's asocial
organization, it has nothing to do with business or
career, small family. And I have a non-resident
membership in it. But I know that it has no restrictions
based on race, religion or sex.*
SENATOR COHEN: Do you want to tell us what the Alibi
Club is? I think it's appropriate for the next Director
of the CIA to talk about the Alibi Club.
JUDGE WEBSTER: It's a very small club. I think it
enjoys a very prestigious membership of some of the senior
people in this town, including Justices. It's so small,
that I do not consider it significant that it has no male
-- it has no female members at the present time. It is
limited to 50 members. It meets once a week for lunch. No
business is discussed. It's just a private group.
SENATOR COHEN: How about the Academy of Missouri
Squires?
JUDGE WEBSTER: The Academy of Missouri Squires-is
the equivalent of the Kentucky Colonel or Nebraska
Admirals. Only it is limited to one -- it's actually, I
think, a little more honorary. There are only 100 or 200
members. I succeeded General Omar Bradley when he died.
It's a lifetime honorary position. I'm very proud of it.
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SENATOR COHEN: Alfalfa?
This your resignation?
JUDGE WEBSTER: The Alfalfa Club is a fun
organization. It meets for a fun evening once a year.
And it currently has --
SENATOR COHEN: You can stop, I'm told the Chairman
is a member.
(LAUGHTER)
THE CHAIRMAN: I think we're almost ready to go. into
executive session.
JUDGE WEBSTER: I can put my list away.
SENATOR COHEN: I would like to return just a moment
to the issue of notification once again.
During the course of the questioning, I raised' the
issue as to whether or not you would have any hesitancy in
notifying the Committee if you were concerned about a
leak. And you said that you would take that into account.
You would come and approach the Committee and at least
express that concern. I wanted to say, at least for the
record to you, that any time that you have any questions
about the possibility of information being leaked by any
Member of this Committee you not only should -- you have
an obligation to come before the Chairman and the Vice
Chairman, and if that's not satisfactory to the Member,
himself, and if that doesn't work, then to go directly to
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59'
the Leadership both Bob Dole and Robert Byrd and ask that-
the individual members be replaced.
I think it's that serious and that should be not a
consideration in your mind as to whether or not you would
comply with the notice requirement under the statute.
That should not be even a consideration Any time you
have a doubt, you ought to come before this Committee or
the House Committee and express that concern. If it can't
be corrected, then go to the Leadership of the Senate and
the House.
JUDGE WEBSTER:. I appreciate that.
SENATOR COHEN: And see that the Members are removed
from the Committee. And I think that you will find a very
responsive ear certainly from the two of us, and I
suspect, from the rest of the Membership here, but
certainly from the Leadership of the Senate.
So I hope that you won't, if you have any doubts
about whether or not we can keep a secret, take that
.factor into account under the statute.
Secondly,.I would like to indicate that I hope you
will give some further consideration about the pledge that
Mr. Gates did, in fact, make before the Committee.' I
think anything short of'that calls into question
compliance with theAct and I consider that to be very
serious, especially since I believe that had notification
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4
5
6
been given to the Congress, you wouldn't have had Irangate
or Contragate or whatever they want to call it. It would
never have taken place. And I believe that this Committee
and the House Committee -- I assume the same thing applies
-- have been insulating factors against abusive actions
taken or arbitrary or unwise actions proposed by the
Executive branch.
JUDGE WEBSTER: I agree with that.
SENATOR COHEN: A couple of just final questions on
these issues.
With respect to a. written Finding, do you believe
that you can have a retroactive ratification of a prior
act that took place before a Presidential Finding?
JUDGE WEBSTER: I really doubt it very much. I would
not consider such a thing as solving the problem created
by the failure to have a Finding.
I think it would be useful to have a full exposition
in the event of such a failure -- what the President had
in mind, would have had in mind -- but I would. have not
personally considered it to satisfy the intent and the
spirit of the statute.
SENATOR COHEN: Well, I know that you are familiar
with corporate law and the doctrine of ultra vires
actions.
And I think that it would be a very dangerous policy
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indeed if we ever allow the Agency to take action without
a Presidential Finding and then put, a President in a
position of having to ratify it retroactively.
JUDGE WEBSTER: I mention -- excuse me. I mentioned
one possible situation yesterday where something could
happen in crisis form that required instant, immediate
response. And I would probably take that as sufficient
provided we got a Finding immediately after that -- at.the
first opportunity to write one down. And I wouldn't quit
until I had one.
SENATOR COHEN: Do you know whether or not Mr.
Yablonski is serving as a consultant to the Sacramento B?
JUDGE WEBSTER: I don't have that on personal
knowledge but I believe, from what I've been told, that he
is.
THE CHAIRMAN: Judge Webster, I want to also reaffirm
what Senator Cohen said to you just a little bit earlier.
In terms of any question about this Committee
maintaining the confidentiality of information, I feel
very, very strongly about that. I do feel that if.you
have any doubts rather than withholding notification based
upon those doubts, whenever those doubts arise, in advance
of any situation where notification would be involved, I
would urge you to bring those concerns either to me or to
the Vice Chairman or to the Leadership of the Senate.
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I would say that we have adopted rules, we do not
allow documents to be taken out of our space, we do not
allow notes on classified testimony to be taken out of our
space, it must remain in the vault area. I have consulted
specifically within the last two weeks with Senator Byrd
and with Senator Dole. I have asked if they would back a
decision by myself and the Vice Chairman that if we felt
we had strong evidence that a Member of this Committee had
leaked classified information, we would seek their removal
or their resignation from this Committee.
I've been assured by Senator Byrd and by Senator Dole
that they support that policy on behalf of the Leadership
of this Committee. And I can tell you that the Leadership
of this Committee intends to exercise exactly that policy
and course of action. it will be. my determination if we
find strong evidence that a member of this Committee has
leaked information to ask for the resignation of-that
Member from either side of the aisle. If we.find that
any member. of the staff. of this Committee has leaked
information, it will result in his or her immediate
termination of employment with this Committee. We felt so
strongly, we sought that assurance from both Leaders in
the Senate. We have received that assurance of support
from both of them. I want to lay that out to you and also
to the public record and to the people of the country
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because'I-think we have that very very strong
responsibility.
Let me go back to just a couple of points.
JUDGE WEBSTER: Mr Chairman, before you do, may I say
that I appreciate what you have said, that I agree to
approach the problem as you and the Vice President -- the
Vice Chairman have asked and that I appreciate your making
such a strong statement because the trust factor which is
so important between the Intelligence Community and its
oversight is a two-way street. And that's one of the
quickest ways. for it to erode. And I appreciate your
approach to it.
THE CHAIRMAN: I appreciate your comments.
Let me go back to the question of Findings and the
process that we follow.
Would you commit to us that you would regard a
retroactive Finding, in other words, actions taken without
a Finding whether or not some writing was issued later
after the fact,.as an illegal action at the time of which
you would feel an obligation to notify the Committee under
the law in terms of illegal intelligence operations?
JUDGE WEBSTER: I would consider it -- I would
consider the Finding and retroactive Finding not to be
valid for purposes of acting upon it.
THE CHAIRMAN: And therefore -- if absent that
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Finding at the time, it would not have been a legal
action?
.In other words,-retroactivity would not give legality
to the action?
JUDGE WEBSTER: That would be my view of it.
THE CHAIRMAN: And therefore you would report that
illegality to this Committee?
JUDGE WEBSTER: I would report it.
THE CHAIRMAN: Let me ask also in terms of oral
.Findings because there is great concern of people saying
that they are acting with the authority of the. President
without his knowledge. Would you pledge to us to act only
upon either a written. Finding, clearly. signed by the
President of the United States, or upon an oral direction
from the President himself in case of extreme emergency so
that you would know that that order came from the
President and from no other person presuming to act under
his authority?
JUDGE WEBSTER: I would.
THE CHAIRMAN: Let me go back again to the question,
and I want you to think very carefully about this because
it's very important.to the Committee.
The law does provide for timely notice of covert
action for which prior notice is withheld by the
President. The President withholds prior notice; the law
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1 says then timely notice shall be given after the fact..
2 Now I want to repeat again and I want you to really
3 think about this because I can assure you it's extremely
4 important to the Members of this Committee.
5 The Vice Chairman has already read the words of Mr.
6 Gates, who has requested to.give his position on this
7 matter several times in the course of the hearings and he
indicated that he would recommend -- we're not saying what
would be done, you've already indicated that if the
President did not follow your . recommendations after a
reasonable period of time, that you would consider leaving
25
your post.
This has to do.with what you would -- not the
President's action, but what you would recommend. Would
you recommend to the President against withholding
notification under any circumstances except the most
extreme circumstances involving life and death and then
only for a few days? Would that be'your recommendation?
Would you tell this Committee that that would be your
recommendation based upon your understanding of the
importance of the oversight process?
Would you pledge to this Committee to make that your
recommendation to the President?
JUDGE WEBSTER: Yes, it would.
THE CHAIRMAN: Well, I appreciate that very much and
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I think it's extremely important that. that be understood
because we're going to build a consensus for foreign
policy, make decisions together, decisions that can stick
and won't be reversed every other week. I think it's
essential that it is that kind of commitment and that kind
of understanding that both branches of government need to
go forward together.
Let me ask, and again, I don't want to come back to
painful subjects and I don't want to close on this note.
No, I'm not going to come back to the Alfalfa matter,
I assure you.
(LAUGHTER)
JUDGE WEBSTER: We can pick that up later with the
Vice Chairman in private.
The question of the memorandum. A letter was
dispatched from the Vice Chairman and myself to Mr. Walsh
on March the 9th indicating to him that we would be,
considering your nomination and asking that any facts that
might be relevant to your particular. role including copies
of any documents under his control which might relate to
any possible knowledge that you might have of the Iranian
arms sales or the Contra diversion be provided to us.
And, as you know, the memorandum about which you were
questioned yesterday was provided to us by the office of
Special Counsel.
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After that,. we brought it to your attention and I
understand your interpretation as to events which you have
set forth in the record and at the conclusion of your
opening statement yesterday.why you did not feel it
necessary to include that document to us.
My question, had Judge Walsh not sent that document
to us, would this Committee have ever been apprised of its
existence by you or the Bureau or. otherwise in the course
of this proceeding?
JUDGE WEBSTER: I can't really answer that question.
It is my understanding that the night before the hearing
the Chairman asked about this document and that my
representatives came right up to you and even though we
did not know whether in fact you had a copy of the
memorandum, made it readily available to you.
Certainly no intent to conceal it from you. There is
nothing that I have instructed not be made available to
you.
THE CHAIRMAN: You were aware of it in terms of your
own review before the night before last. You were aware
of it in terms of your own briefing preparation to appear
here? Were you not?
In other words, the people briefing you, I think, had
made you aware of the existence of this memorandum?
.JUDGE WEBSTER: The particular matter that was
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1 contained in that memorandum was discussed in a criminal
6
investigative briefing several days before. It was not in
.a, as I recall, in a preparation for this hearing but in a
general: briefing. my senior staff in trying to pull
together every bit of information that related to my
knowledge of illegal actions by U.S. Government officials
in respect to Central America did not consider that this
particular document fell within your line of inquiry.
And their reason.really was because it was public source
material and you had excluded other than media source.
When I was shown the document the morning of the
hearing, it was my view that it did still not apply
because you asked about.evidence of.U.S. officials
involved in illegal activity. The material in that
memorandum related to something entirely different. And
while it was in the -- it had been referred to in a
newspaper article, was obtained under sensitive
circumstances.
And I do not believe that it was contemplated. If
you ask me the broader question of whether .1 intend to.
give you half a loaf on your questions or whether I will,
if confirmed, give you the fullest possible answers on
matters that I think you are interested in, the answer is
absolutely. There was nothing in that memorandum that I
thought dealt with what in. conversations with you you told
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1. me you wanted to know which was what. did I know about
.illegal activity. And I did not know anything about
illegal activity.
THE CHAIRMAN: I don't want to go back over this item
anymore. than is necessary. I want to make it clear I
don't want to -- I. raise this question again with you not
for the purpose of trying to over play its importance, or
to become so technical as to be unreasonable. I do want
the record to reflect that you and I_had a discussion even
I believe the day before in which you indicated to me that
you had come across things sometimes in the files and were
going back and researching them to make sure we know about
everything. These were things you didn't know about.
Things were not brought to your attention and therefore
you wanted to make sure you were totally responsive to our
question, but didn't want to throw in irrelevant data.
And I said to you that indeed that was the case. We
didn't expect you to bring in the entire files of the FBI
before the Committee and matters that were. not clearly
relevant to our considerations. You expressed certainly a
spirit of willingness to try to be thoroughly responsive
and I want you to know that I appreciate that. I
understand that and I want the record to clearly reflect
that as I certainly am not trying to present a distorted
picture.
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I know that you sincerely wanted to do that. I would
have to say in all candor that I think that this was an
error on this one point because we were trying to find all
of the input that might have come to you. What kind of
suspicions would you have normally had. We know that
Colonel North had talked. to Mr. Revell earlier about this
investigation into Southern Transport and then the request
for the delay of the investigation and the various
conversations you had had wondering about how Colonel
North might be operating.
So. we were interested in your state of mind and
whether you had perhaps been suspicious enough at the time
that you were asked to suspend the investigation for a
period of time. That's the. reason we felt on retrospect,
and we're not trying to be your armchair quaterbac.ks, that
perhaps that might have.been relevant. But I understand
it's simply a difference of interpretation. I'm not
trying to overplay it or over dramatize its importance. I
think we do understand it and I do want to say that the
only point for making it again is to say that we on this
Committee would hope that when in doubt about the
relevance of something and you called me on two matters to
ask me if I thought they were relevant and I said no.
We would hope you are always there on the side of
disclosure to us and I take you at your word. I take you
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at your word in the very fine statement you just made to
us in terms of your determination to do just that.
JUDGE WEBSTER: I appreciate that, Mr. Chairman. If
I might just add into the record that following yesterday,
because it was the first opportunity we were able to
ascertain from the document in the possession of the
Independent Counsel, that that' particular memorandum did
not reach my office until October 31st, the day after I
had authorized the suspension of all non-urgent
investigation for ten days.
I had also, by that time, directed Mr. Clarke to let
me know of any matters which would cause us any problem.
Since he saw the same memorandum, my own conscious, at
least in retrospect, is clear that the procedures that I
set in place would have worked and did work. But the
overall question, I just want to say again, I give you my
solemn pledge that I will not try to be devious or cute
with the Committee. You will -- if I know what you're
looking for, you will have the information.
THE CHAIRMAN: I appreciate that very very much. I
appreciate the candor with which you have answered our
questions. The patience with which you dealt with them.
Again, I want to say I think this has been a very healthy
process. It sensitizes us on both sides of the table to
our high responsibilities to a system of which we are a
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part and I think that process in itself has to be good for
the country for us to go through it.
It's somewhat stressful at all sides and we have had
you sitting there alone at the table now for many hours.
But I think in the long run this kind of process has a
very constructive purpose and one which serves our country
well. I appreciate your participation in it.
Let me ask the Vice Chairman if he has any concluding
comments.
At this time, then, we will stand in recess into the
closed session which we will resume in the Committee space
upstairs to complete classified questions that members of
the Committee have to address.
(Whereupon, at 5:03. o'clock p.m., the Committee was
recessed, to reconvene in closed session.)
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